Tuesday Pop Review- The NFL Red Zone Channel

Posted October 4, 2011 by Craig Salner
Categories: Pop Reviews

Welcome all to your Tuesday Pop Review!  So you have probably noticed over our first several months that I am a pretty big sports fan.  The enthusiasm that you saw as we broke down sporting events like NCAA’s March Madness and the NBA Finals pales in comparison for my Fall football craze.  From September through December, my dream weekends include literally nothing other than watching football.  For the NFL, I am in three fantasy leagues, I do those fun “Survivor” pools and yes, I have an occasional wager on an occasional game.  I also have been a fairly devoted Miami Dolphins fan for the past 20 years.  (No need to send sympathy cards, but thank you). 

Over the last 10 years or so, football has become increasingly difficult to watch on television.  Sure, I love the HD era, but my real problems are the excessive commercial breaks.  In an era where television rights contracts cost networks multiple billions of dollars, networks have pounded us with excessive commercial breaks at an insulting rate.  Breaks used to be relatively manageable.  Typically, the game would go to commercial after most possessions (either scores or punts), at the end of quarters, the two-minute warning at the end of the half, and some timeouts except those that occurred at critical stages where the analysts would actually analyze something important.  Networks would also be reasonable with us and not do things like go to commercial after a punt with 40 seconds left in a quarter, knowing that we would be going to break after the next 1 or 2 plays.     

The only typical exception of this pattern was Monday Night Football, where ABC used to sneak in about 1 additional break per half after kickoffs.  As in, Team A scores, kicks the extra point, commercial, back from break, kickoff to Team B, commercial again.  We accepted this for a variety of reasons, including that we were probably 3 beers in. 

Now, with billions in advertising revenue needed to make up for the absurd contract prices, the old exception has become the norm.  Every single pause in the action is greeted with 2 minutes of commercials, including about 50% of all kickoffs, any coach’s challenge, any injury, and about 95% of all punts.  FOX is more than happy to take you to commercial after a kickoff with 30 seconds left in a quarter.  ESPN treats us to the “GMC Monday Night Launch,” which gives is really just code for “We’re gonna get 2 commercial breaks in before we even shove Hank Williams, Jr. down your throats,” and NBC loves giving us a 1992 Tom Petty jingle on the way to break at the first sight of a coach’s challenge flag. 

The result?  Watching a single game on television is one of the most disconnected feelings a sports fan can have.  If you get 5 consecutive plays in without a break, it’s a bonus.  You also couldn’t pay me to go to an NFL game live.  The idea of being squished into a seat in 95 degree heat while nothing is happening 70% of the time except drunk obnoxious fans trying to coach from the 400 sections?  No thanks.   

The only savior left is the NFL Red Zone Channel.  About 4 years old, Red Zone is on from 1 pm on Sunday until the final 4:15 game ends, with zero commercial breaks and a host (the witty and knowledgeable Scott Hanson) taking viewers to each game live at all key moments.  For fantasy football players and folks who are more football enthusiasts than diehards of a single team, Red Zone is the only way to go and the only reason why the NFL is still watchable.  With most cable packages, the Red Zone is a $5/month add-on and comes with a bunch of other decent sports stations (i.e. Big Ten Network, Fox Sports [insert region here]).  If you’re as jaded as I am about watching the NFL and don’t have the Red Zone, I highly recommend it! 

Monday Practice Tips for Young Attorneys- Don’t Qualify the Opposing Expert!

Posted October 3, 2011 by Craig Salner
Categories: Practice Tips for Young Attorneys

Hope everyone had a better weekend than this Florida Gator fan!  Today, we circle back to our series on deposition preparation.  When we last spoke on this issue, we were starting to dole out some tips for deposing experts.  Today we focus on another associated tip:  Never qualify opposing experts in your deposition!

In advance of the deposition, you will undoubtedly receive a copy of the expert’s curriculum vitae, setting forth their storied academic and professional history, the three dozen articles they have had published, their various academic appointments, etc.  For some reason, it’s a natural urge to draw up a series of introduction questions about the expert’s qualifications.  Almost like an early throat-clearing part of your outline when you are afraid to start digging into the heart of the area of expertise.  Having the expert “qualify himself” during your examination is a big mistake for several practical reasons:

1) While you are accomplishing absolutely nothing that helps your case, you’re chewing up 15-20 minutes of valuable time.  As a reminder, your client has to pay for the expert’s deposition time, which will often be in the range of $500/hr.  You often will come to the deposition with a check for just an hour or maybe two.  You don’t want to be rushed during the important parts because you let the expert talk about their grades in college for 20 minutes at the beginning.

2)  More importantly, you never know when an expert will be unavailable to attend trial.  Most young lawyers are used to having relatively open calendars.  Grizzled experts are exactly the opposite.  They clear deposition times, vacation, speaking engagements, and everything else months in advance.  When the date of trial starts skipping around as they invariably do, trial experts often will be unavailable to attend (particularly ones that are not local).  By letting the witness give us qualifications in deposition, you just permitted your opponent to have his deposition read into the record at trial, if the witness is indeed unavailable.  If you don’t qualify the witness, your opponent neglects to do so on cross-examination, and the expert does not attend trial, he is lost to your opponent (unless his testimony is somehow otherwised preserved on the eve of trial).

We will be back with a Pop Review tomorrow!  

Friday Florida Law Update- Seaworthy Despite Negligent Medical Staff?

Posted September 30, 2011 by Craig Salner
Categories: Florida Law Updates

Hello all, TGIF, and welcome back for your Friday Florida Law Update! Today we look at a tragic incident that occurred aboard a Royal Caribbean cruise ship. In Fleuras v. Royal Caribbean Cruises, Ltd., 2011 WL 4467347 (Fla. 3d DCA Sept. 28, 2011), a deceased woman’s estate brought a claim against the cruise line, alleging that one of its ships was “unseaworthy” due to the negligence of its medical staff.

The sad facts of the case were that a ship photographer, Diana Fleuras, complained to medical personnel multiple times over the course of several days relating to abdominal and back pain.  In the course of treatment, she was diagnosed as pregnant, and days later underwent an abortion procedure from a physician in the Virgin Islands.  Upon her return to the ship after the abortion, she continued to complain of abdominal pains and repeatedly sought medical attention.  She was prescribed multiple medications by the ship’s medical staff.  One evening, while the ship was in port, Fleuras required emergency assistance.  An ambulance was summoned to the port, and Fleuras was transported to a hospital, where she subsequently passed away from complications due to her pregnancy — specifically, that she had an ectopic pregnancy (one where the embryo implants outside the uterine cavity).

Her estate sued Royal Caribbean, complaining that the ship was rendered unseaworthy by its negligent medical staff.  Specifically, Plaintiff alleged that the ship’s staff failed to adequately detect Fleuras’ ectopic pregnancy, failed to adequately document her symptoms, failed to provide sufficient history to the paramedics, failed to establish proper medical procedures or, alternatively, failed to follow them.

At the trial court level, the court granted summary judgment to Royal Caribbean on two grounds — 1) a single act of negligence by the medical staff was insufficient to deem a vessel as “unseaworthy,” and 2) a shipowner has no duty to establish procedures to govern medical emergencies.

On appeal, the Third District Court of Appeal affirmed in part and reversed in part.  Essentially, the Third DCA agreed with the two points above.  However, the appellate court ruled that summary judgment was premature for two reasons.  First, Plaintiff was entitled to further discovery to determine whether the medical staff was incompetent generally (which would qualify a vessel as unseaworthy) or just had a single act of negligence (which does not render a vessel unseaworthy).  Second, Plaintiff was entitled to further discovery as to whether the ship had indeed promulgated emergency procedures because, while an owner has no duty to promulgate such procedures, if indeed they do enact procedures, they must be followed.  This is also known as the “undertaker doctrine.”  You may not have a duty to do something, but if you undertake the duty, you must carry it out in a non-negligent manner.

Despite some of the draconian features of this ruling, keep in mind that this also has a lot more to do with Royal Caribbean’s deep pockets.  Plaintiff is also of course free to pursue the physician directly for redress.

Have a great weekend!!

Thursday Poker Blog! “August and Everything After”

Posted September 29, 2011 by Craig Salner
Categories: Poker Tips and Tales

Welcome back to everyone’s favorite part of this blog — Poker Thursday!  Today’s title and photo has multiple meanings.  The album cover to the Counting Crows’ first album, “August and Everything After,” signifies a) an homage to my many Jewish friends celebrating their new year today (The CC’s singer Adam Duritz is a fellow enlightened one!); and b) signifies the rarified dominant air I have enjoyed in my poker home game since the beginning of August!

Interestingly, my good friend and biggest rival (another attorney btw, check him out at  http://www.shermanlawpa.com) had similar runs in previous years where he let the field linger for the first half of the season and then, when August came around, Boom!  He was out of sight ahead of the field (and yes, btw, we know this because we keep detailed standings!). 

So, let’s review the bidding.  Our home game typically gets between 7-9 players a week, with occasional bigger games going up to 14-16 on rare occasions.  Our buy-in is $30 per game and we play two games per meeting.  On occasion, we will play one large game for $60 instead of 2.  We typically pay out 2-3 players per game depending on the number of players (in other words, it’s not “winner-take-all”).

So, since and including July 27th, my group has played 18 games.  I have made the money in 14 of them, winning or chopping in 11 of those (“chops” are when the remaining players agree to some equitable split of the prize money instead of playing the tournament out to the end).  It’s been probably the hottest string of poker in my life (over $1,300 in winnings in a low-stakes game).

The reasons?  Of course, luck has to work in your favor.  Your good hands have to consistently hold up, you must win the key races, and yes, I have had the fortune of overcoming the odds in multiple circumstances.

However, you cannot have a run like that without making some really good decisions.  For me, I would have to say that recent renewed interest in NBC’s “Poker After Dark” has been a big help.  The show is not perfect by any means, but watching top pros operate has really reinforced the basics:

1) Position is huge.  Don’t draw from out of position, don’t be afraid to see a flop with modest holdings when you have position. 

2) Having the best hand is great, but never count out the second way of winning a pot — betting

3)  Pot odds.  If there’s a raise with several callers and you’re in the big blind with a fatty cut of meat (a weak hand), don’t be afraid to see a flop

4) Don’t be afraid to call all-ins with middling hands when you know you’re opponent is in a position to shove with any two cards.

We can spend years going over neat little poker moves every Thursday, but never forget the basics. …

Wednesday Federal Employment Law Update- Pregnancy Discrimination

Posted September 28, 2011 by Craig Salner
Categories: Federal Employment Law Updates

Hello all, and welcome back for your Wednesday Federal Employment Law Update.  This week, we discuss the case of Slater v. Energy Services Group Int’l. Inc., 2011 WL 4425306 (11th Cir. Sept. 23, 2011), a case where the Eleventh Circuit Court of Appeals affirmed summary judgment for the employer in a claim for pregnancy discrimination under Title VII and Florida’s state statutory equivalent, the Florida Civil Rights Act. 

Since 1977, with the passage of the Pregnancy Discrimination Act, pregnancy discrimination has been a recognized form of gender discrimination.  Claimants must meet the same standards for a prima facie case, including rebutting legitimate, non-discriminatory bases for termination by proving pretext. 

In Slater, the plaintiff was terminated from her position as a vision test technician after she allegedly failed to properly administer a vision test.  Plaintiff alleged that the true reason for her termination was excessive absences related to her pregnancy.  However, the record showed that Defendant had disciplined her regarding attendance and other performance issues before she ever became pregnant with both verbal and written counseling. 

Plaintiff also claimed retaliation based on an e-mail that she sent one month prior to her termination attempting to assure her superiors that she could perform her job despite being pregnant.  The Court held that this e-mail did not constitute “protected activity” triggering a retaliation claim because Plaintiff was not complaining of pregnancy discrimination, but rather simply sending a positive e-mail regarding her purported ability to perform her job at a competent level. 

This was a case with weak facts, which unfortunately does no justice to the reality of pregnancy discrimination.  While the case law does not require an employer to excuse unlimited absences, employers must be weary of assuming that pregnant employees will be problematic and give these employees the benefit of the doubt in these temporary circumstances, or face the prospect of a discrimination claim brought by a sympathetic plaintiff.   

Tuesday Pop Review: “Those Guys Have All the Fun: Inside the World of ESPN”

Posted September 27, 2011 by Craig Salner
Categories: Pop Reviews

Hello all, and welcome to Pop Review Tuesday here at the blog.  Today we look at the relatively recent non-fiction biography of ESPN, or as I like to call it, my television’s “home page.”    The authors, James Andrew Miller and Tom Shales, previously did a similar piece on NBC’s late night franchise Saturday Night Live

The book, which we will refer to as Inside ESPN, is an in-depth cover to cover documentary of the company’s history, from its initial start up phase, to the days of Australian Rules Football, the breakthrough programming of NFL Football and Major League Baseball, to its present day global icon status, which includes a hand in virtually every single major sporting event, multiple television stations, a radio station, websites, restaurants, video games, etc. 

The layout of the book is in true documentary format, with portions of interviews stacked together with minimal monologue from the authors which is used for little other purpose than to transition from topic to topic. 

The book has a little bit of everything, from giving us behind the scenes looks at how ESPN was first formulated and put together, to chronicling some of the more notorious incidents at the network (i.e., the Jim Rome/Jim Everett altercation and the drunk Joe Namath pass at Suzy Kolber, to name a few),  to giving us a behind the scenes view of the brand’s personalities. 

These authors literally interviewed everyone, including Chris Berman, Dan Patrick, Keith Olbermann, Bob Ley, Craig Kilborn, Mike Tirico, Erin Andrews, Kirk Herbstreit and dozens more. 

The book is truly all access and for fans of the network or sports in general, a must-read.  Now, granted, I do have a handful of nitpicks, including a dislike for 80-100 page chapters (the book is over 700 pages and only has 9-10 chapters) and at times, the discussions of some of the revenue issues relating to cable operators tend to drag. 

Still, these minor flaps are no reason to pass on this book, which also makes a great gift.  (I know I know, you’re waiting for me to say “Now HERE’S how to order!!”). 

 

Monday Practice Tips for Young Lawyers- Interviewing Tips

Posted September 26, 2011 by Craig Salner
Categories: Practice Tips for Young Attorneys

Hope everyone had a great weekend!  It’s great to be back for today’s relaunch of the daily blog!  We’re still learning how to keep the blog moving amidst busier times so thanks for bearing with us. 

Today I want to speak a little bit about a situation nearly all of us face before the beginning of our first job and, unfortunately, many of us face again within the first few years after we start the practice of law — interviewing.  Our firm just added an outstanding new attorney, so the process of interviewing candidates is pretty fresh in my mind.  During the process, a few positives and negatives stood out for me in listening to responses from some excellent prospects.

First, the easy stuff.  Let’s call them the Fast Five:

1)  Be on time!

2)  Dress in business attire (even if you know the employer is business-casual!)

3)  Research the firm in advance and be aware of what type of work they do.

4) Go with the flow at your interview.  If they want you to meet 20 people, so be it.  If one person interviews you for 90 minutes, no problem.

5) If you go out for lunch, no sloppy joes or baby back ribs! 

These are pretty basic and self-explanatory.  Here are a few more subtle tips.  Remember, these are for more inexperienced attorneys!

1)  Have a Team-Oriented Mindset.  Some will disagree, but I am not a fan when green attorneys come into an interview and say that they want to work in a single area of the law.  Of course, if you are interviewing at a practice that works in that one area, that’s great.  If you are coming to a diversified practice, it is OK to mention that you enjoy certain areas, but generally you want to go in with the mindset that you want to come in and help the team in any way possible.  When you start bringing in business, that is when you can declare the practice area you want to focus on. 

2)   Never Disparage Your Former Employer.   Most young attorneys transition from one job to another because they are dissatisfied.  Dissatisfied with money, the type of work, amount of work, personalities, or a combination of these.  Your prospective employer knows this, so there is no need for any disparaging remarks.  First, the legal community is remarkably small, and word tends to spread around fast.  Second, someone at your prospective employer may know the person or persons you do not care for,  so you may find yourself putting a your foot in your mouth quickly.  Finally, attorneys revere the collegiality of the profession.  We generally know who most of the few bad apples are, no need to highlight it for us!

3)  Follow up.  Within a few days of your interview, send follow-up e-mails to the individuals you spoke with.  Include some sort of personal touch indicating that you were paying attention to what the interviewer was talking about.  (i.e., “I saw Auburn won last weekend, you must have enjoyed that!”).  In an atmosphere where many of the discussions must sound the same after a few interviews, it is impressive to see when candidates are actually focused on the individual connections they make over the course of a 15-30 minute discussion.

I hope these help!!!

We Will Be Back Next Week!!

Posted September 22, 2011 by Craig Salner
Categories: Uncategorized

Hello folks, I know we have been an absentee landlord for a few weeks and for that I apologize.  Things have been super busy at work and it’s been tough finding the time to write.  We are making some adjustments and plan a re-boot starting on Monday.  Thanks in advance for your loyalty!

Have a great weekend!!

Tips for Young Attorneys- Deposition Prep Part 3: Experts

Posted August 31, 2011 by Craig Salner
Categories: Practice Tips for Young Attorneys

Welcome back to our series on preparing for deposition.  Today we will move into a intimidating area — expert witnesses.  Adverse experts are so menacing because without exception, they know more about what they’re talking about than you do no matter how much preparation you perform in advance of deposition. 

However, you’re not powerless to draw some blood in deposition.  Here are some tips to help:

1) Heavy reconnaisance; obviously, but what kind?  While I cannot become more of an expert than a doctor or an engineer, I still need to know some basics.  Typically, you should have the basics of the expert’s opinion in advance of deposition.  So, you will want to review some secondary sources to see if their opinions are widely held.  Another great tool is obtaining transcripts of the expert’s prior depositions to see if their current opinions contradict prior ones.  Idex is a great third-party source of these.  You can also contact attorneys involved in their prior cases and see if they will provide you the expert’s deposition, as experts often must provide a list of cases in which they have testifed.  You would be surprised how often experts contradict themselves.  After all, they are being paid to provide a certain opinion.  Also, all the same social media and criminal background checks apply. 

2) Setting reasonable goals.  You will rarely get an expert to change their opinion to side with your client’s position.  Still, you can garner some key admissions without having them switch sides completely.  First, you have the easy ones:  1) getting paid to be here; 2) you would not testify today unless I paid you; 3) you have never met/examined the Plaintiff.  Also, you will sometimes encounter experts who draw conclusions based on your opponent’s side of a disputed fact issue.  For example, say the case involves a disputed issue about whether a material fact was disclosed prior to a business transaction.  The opposing expert may have an opinion such as “Company X was right to renege on the agreement after it realized that Company Y did not disclose Z.”  Well, when did this expert become the trier of fact?  An effective line of questioning will get the expert to admit that 1) the parties dispute whether Company Y disclosed Z; 2) If the expert’s assumption about the fact issue is wrong, their opinion on the matter is moot; and 3) the expert is not here to opine on fact issues. 

We will have some more expert depo prep tips next week!

Federal Employment Law Update- Title VII

Posted August 30, 2011 by Craig Salner
Categories: Federal Employment Law Updates

Welcome everyone to your Federal Employment Law Update!  Today’s case reminds us of a few things:  1) random remarks that do not fit together will create a circumstantial evidence case of race discrimination; and 2) courts will generally find any basis to avoid considering an attorney’s fee claim if the opportunity presents itself!

In Idemudia v. JP Morgan Chase, 2011 WL 3648219 (6th Cir. Aug. 18, 2011), the Sixth Circuit Court of Appeals affirmed summary judgment in Chase’s favor on Plaintiff’s Title VII claim for race and national origin discrimination. 

Plaintiff, of Nigerian descent, started with Chase as a bank teller in 1996 and by 2007, worked himself up to a branch manager position, where he reported to a white District Manager.  Just a month into his promotion, Plaintiff experienced various problems at the bank, including two audit reports stating that the branch “needs work,” another incident where the branch was fined $500 after an employee’s child pulled the fire alarm, and finally on the same date the alarm was pulled, a policy violation regarding the misplacement of customer deposits.  Plaintiff was not at the branch on this controversial date, but was suspended due to poor training and oversight over the remainder of his staff.   

Plaintiff was instructed to create branch action plans and to personally undergo management training.  Plaintiff scoffed at the idea of the branch management plans and later lied to his supervisor about having completed the training.  Following this incident, Plaintiff was asked to interview for a lower position in the company.  When he refused, he was given the option of resigning, which he declined.  He was then terminated.   He was replaced by a white woman.

In his case, Plaintiff raised two instances of racially insensitive comments, one from a subordinate and one from a supervisor on separate unrelated occasions.  The more imporant comment, from the supervisor, was the less egregious of the two, stating that he once dated an African-American but that she broke up with him because he was white. 

After rejecting Plaintiff’s claim that the dating anecdote represented “direct evidence” of discrimination, the court applied the McDonnell Douglas framework for circumstantial evidence.  Since he was replaced by someone outside his protected class, he met the lenient standard for a prima facie case.  However, after JP Morgan set forth its reasons for terminating him, Plaintiff could not string together enough circumstantial evidence to convince the appellate court that a reasonable factfinder could determine that race was the real reason for his termination.   Accordingly, summary judgment was affirmed. 

Chase moved for its attorneys fees, which Title VII permits for the defense if the matter is considered frivolous.  However, the Court declined to even consider the motion for a silly procedural reason.  Frankly, this did not seem to be the type of “frivolous” case warranted fees to the defense, but it is still humorous how far the courts will go to avoid the issue of fees against an employment claimant.  More importantly, this case is emblematic of the fact that one or two random comments involving race (or any other protected class) does not necessarily trigger an employment discrimination claim.